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Customs - Central Government - Case Laws
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2020 (11) TMI 758
Smuggling - Gold - Baggage Rules - Conspiracy - absolute confiscation - levy of penalty u/s Section 112(a) - HELD THAT:- At the outset the Government observes that the officers of AIU have acted impulsively, and somewhat prematurely the passenger Shri Sahubar Sathik Hithayadullah was intercepted as soon as he stepped out of the Aircraft, at the aerobridge. It is therefore clear that the passenger was prevented from filing a declaration as required under Section 77 of the Customs Act, 1962. As a plan/conspiracy was in existence, the officers having specific intelligence could have made the interceptions after the transfer of the gold near the lifts. Further, the seizure of the gold took place at the aerobridge and according to the mahazar, the Respondent has not received the gold from the passenger nor has he come into contact with him or ....... + More
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2020 (3) TMI 773
Duty Drawback - application for fixation of the brand rate rejected - Rule 7(1) of the Drawback Rules - HELD THAT:- Rule 7 clearly stipulates that in case the exporter has already availed All Industries Rate (AIR) irrespective of the fact whether it is only in respect of the customs portion or the Customs, Central Excise & Service Tax portion together no application under Rule 7 for the fixation of brand rate can be filed. Moreover, the para 7 of the above said notification quoted by the applicant only relates to the All Industries rates of drawback and has nothing to do with the fixation of brand rate under Rule 7 of the Drawback Rules. These are two independent provisions and cannot be linked to claim benefit which is not due. The scope of Notes and Condition No. 7 (supra) is thus limited to granting of Customs portion of drawback e....... + More
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2020 (3) TMI 669
Classification of imported goods - Sputtering Targets - whether classified under Central Excise Tariff Heading 8543 or under 7115? - Duty Drawback - HELD THAT:- Section Notes and Chapter Notes of Schedule to Customs Tariff Act, 1975 are in line with the General Rules for the Interpretation of the Harmonized System of Nomenclature. Therefore a combined reading of Rule 3(a) of HSN and Chapter Note 1(b) of Chapter 71 of the Schedule to the Customs Tariff Act (CTH), 1975 makes it clear that the impugned items merit classification under Chapter 71 - Although a notification cannot decide the classification of an item it is observed that silver sputtering target have been mentioned under Chapter 71 under Notification No. 8/2003-Customs, dated 13-1-2003 by C.B.I. & C. Apex Court in PANKAJ JAIN AGENCIES VERSUS UNION OF INDIA [1994 (7) TMI 89 -....... + More
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2020 (3) TMI 668
Smuggling - Gold Biscuits - Baggage Rules - absolute confiscation - penalty - HELD THAT:- In the instant case, it is evident that applicant is the bona fide owner of impugned goods and the applicant had requested the Commissioner (Appeals) to allow the re-export of impugned goods. Section 80 of the Customs Act, 1962 provides that the detained imported goods can be re-exported at the request of the passenger where he/she is returning from India to a foreign country. Thus, apart from declaration of the imported goods at the time of arrival of passenger, return of the passenger to the foreign country after a short visit to India as a tourist or otherwise is a crucial condition for re-export of such goods. The applicant has contended that he was not given an opportunity to declare the gold items in writing at the time of his arrival at Kolkat....... + More
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2020 (3) TMI 667
Smuggling - Silver items - Baggage Rules - redemption of confiscated goods - HELD THAT:- Silver in any other form other than ornaments does not come within the ambit of bona fide baggage as per the Baggage Rules, 2016. The applicant has brought 8 pieces of silver bowls of foreign origin. This is an admitted fact by the applicant in his voluntary statement tendered under Section 108 of Customs Act, 1962 that he owns a shop dealing in silver utensils and he purchased these utensils from Yangon, Myanmar. From the evidence on record it is observed that the applicant crossed the green channel without declaring the impugned articles in his possession in the Customs declaration form or in any other form to the Customs officers and thereby violated Section 77 of the Customs Act, 1962. The applicant has attempted to smuggle the impugned silver art....... + More
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2020 (3) TMI 651
Bonafide baggage or not - Import of Drones - Section 79 of the Customs Act, 1962 - HELD THAT:- It is found that the Commissioner (Appeals) has rightly observed that the drones and their accessories imported by the applicant do not constitute a part of bona fide baggage in terms of Section 79 of Customs Act, 1962 read with para 2.26 of Foreign Trade Policy (FTP), 2015-20 which defines the bona fide baggage which can be brought by a passenger without any authorisation by the concerned authorities. The Government holds that the benefit of free allowance of ₹ 50,000/- under the Baggage Rules has been wrongly extended by the adjudicating authority to the applicant since drones and their accessories cannot be cleared as “baggage”. The revision application filed by the applicant is rejected and the order of the Commissioner (Appeals) is upheld - The Department is directed to recover the differential duty from the applicant on the said accessories.
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2020 (3) TMI 579
Smuggling - Gold bars - concealment in the baggage - absolute confiscation - prayer for redemption and reduction in quantum of penalty - HELD THAT:- It is observed that gold in any other form other than ornaments does not come within the ambit of bona fide baggage as per the Baggage Rules, 2016. The applicant has brought gold of foreign origin in raw form/small pieces weighing 1000 grams. This is an admitted fact by the applicant in his voluntary statement tendered under Section 108 of Customs Act, 1962 wherein he has stated that he is the owner of the recovered gold and the same has been purchased by him on cash payment in Dubai. Prohibited goods or not - HELD THAT:- From the evidence on record it is observed that the applicant crossed the green channel without declaring the impugned articles in his possession in the Customs declaration ....... + More
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2020 (3) TMI 381
Penalty u/s 116 of the Customs Act, 1962 - Commissioner (Appeals) has set aside the Order-in-Original on the basis of the fact that the OTR (Out Turn Report) alone cannot be the basis of imposition of penalty where the Surveyor’s report has confirmed that there was no short landing - HELD THAT:- Government finds that the present case is regarding imposition of penalty under Section 116 of the Customs Act, 1962 on the ground of short-landing determined on the basis of quantity. C.B.I. & C.’s Circular No. 46/95-Cus., dated 4-5-1995, relied on by the Respondent - The circular relied upon by the respondent is regarding levy of duty and penalty. Therefore the respondent does not get any benefit of the above circular. No explanation has been offered by the respondent as to how the weight of 2473.628 MT in the survey report can m....... + More
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2020 (1) TMI 1312
Confiscation - one gold bracelet/kada and two gold chains - Baggage Rules - revision application has been filed on the grounds that the gold was purchased by the applicant from M/s. Kishan Lal Jewelers Pvt. Ltd. in India and he should be allowed to clear the gold jewellery without redemption fine, personal penalty and customs duty - HELD THAT:- No evidence has been put forth by the applicant establishing his contention that impugned goods are of Indian origin except the invoices which cannot be treated as substantive evidence. The applicant was asked to give evidence regarding the mode of payment in respect of Purchase Invoices No. C-440, dated 13-5-2014 and No. C-668, dated 11-7-2014 and the fact that he was in India on these dates, i.e., the dates of purchase of impugned goods. Since the applicant has not furnished cogent evidence in su....... + More
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2019 (12) TMI 1388
100% EOU - Duty Drawback - allegation that the drawback amount was paid erroneously to the respondent i.e. M/s. Narendra Tea Company (100% Export Oriented Unit) - whether the drawback is admissible to a 100%/Export Oriented Unit? - HELD THAT:- In the instant case Excise duty has been paid by bulk tea manufacturer and supplied to 100% EOU treating the same as ‘deemed export’. Therefore, Government is of view that the respondent by no stretch of imagination being a 100% EOU can claim drawback on export goods since drawback is not admissible to a 100% EOU unit in terms of General Notes 2(c) of C.B.E. & C. Notification No. 31/1999-Cus. (N.T.), dated 20-5-1999. Thus the drawback in the instant case should have been claimed by the bulk tea manufacturer who has paid the Excise duty and supplied the impugned goods to the responden....... + More
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2019 (12) TMI 1384
Penalty - Smuggling - Foreign Currency - It is observed that Tushar Kumar in his statement tendered under Section 108 of the Customs Act, 1962 has contended that he was carrying the impugned forex on behalf of Virender Verma for a consideration - Government is of the view that Sh. Virender Verma and Tushar Kumar are part of a Hawala racket and have attempted to illegally smuggle a huge quantity of forex out of the country which was concealed in the inner lining of the bag - HELD THAT:- The lower authorities have failed to appreciate the facts of the case in the correct perspective and ordered the release of the impugned currency on payment of redemption fine to the noticee which should have been confiscated under Section 113 of Customs Act, 1962 without giving an option of redemption. Shri Virender Verma in his statement tendered under Se....... + More
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2019 (12) TMI 1380
Smuggling - Gold Bars - Forex and Indian currency - packaging materials and other miscellaneous goods - absolute confiscation - penalty - cross-examination of the customs officers manning x-ray machine and red channel counter as well as the witnesses present on the date of seizure in the case - HELD THAT:- From the evidence on record it is evident that Indian currency as well as huge amount of forex Dirham 1,05,410 was recovered from the PAX on 23-9-2012. The impugned currency was also not declared to the customs officers at the red channel under Section 77 of Customs Act, 1962 by the PAX - It is observed that the PAX did not make the statutory declaration on his arrival to the customs authorities since the Forex (UAE Dirham 1,05,410) carried by him was much higher than the prescribed limit under the FEMA, 1999 read with Foreign Exchange ....... + More
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2019 (11) TMI 1505
Classification of imported goods - Human hair, double drawn washed & cleaned well dressed - Classifiable under RITC 05010010 or RITC 6703? - Power of Commissioner (Appeals) to remand the case back to the original authority is concerned - HELD THAT:- It is on record that the description of the goods remained the same during the entire period i.e. prior to September, 2011, between September, 2011 to December, 2012 (12-12-2012) and after 12-12-2012. However, the respondent has been changing the classification of goods from time to time so as to avail benefit of export incentives scheme available to them from time to time. This fact has been admitted by the respondent in their letter dated 13-2-2013 addressed to Dy. Commissioner, Export Commissionerate, Air Cargo, New Customs House, New Delhi-110037. From the plain reading of the the head....... + More
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2018 (11) TMI 535
Absolute Confiscation - penalty - smuggling - gold bangle/kara - Baggage Rules - case of applicant is that the gold bangle/kara was not purchased from Bangkok, this was in his use when he left from India - Held that:- The applicant has not produced any evidence to establish that he had taken the Kara along with him from India itself and he has not been able to give a convincing reason as to why he had got the gold kara coated with silver colour if he had worn it as a religious symbol in India itself - Moreover, a steel kara is commonly used as a religious symbol and a gold kara is not generally considered as a religious symbol by the Sikhs. The Commissioner (Appeals)’s order is erroneous to the extent the gold has been confiscated absolutely as Under Section 125 of the Customs Act, 1962, it is mandatory to give option to the owner of the ....... + More
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2018 (11) TMI 534
Revision application - absolute confiscation of Foreign currency - the revision application has been filed mainly on the ground that the Commissioner (Appeals) has erred by allowing the redemption of the absolutely confiscated foreign currency which are prohibited goods. Held that:- The Commissioner (Appeals) has noted in his order that the foreign currencies in this case had been arranged by the respondent by selling his two properties in Delhi. But this fact alone cannot attenuate the gravity of the offence committed by the respondent by not only procuring the foreign currencies from illegal resources in brazen violation of FEMA and various other laws in force but also by attempting to export the foreign currencies to a foreign country in contravention of Section 77 of the Customs Act, 1962. The Commissioner (Appeals) has overlooked the....... + More
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2018 (9) TMI 1944
Reduction in the quantum of penalty - illegal import of Samsung TV - Gold bars - revision application is filed mainly on the ground that the penalty on the applicant has been wrongly upheld in Order-in-Appeal even when he did not do any act or omission in regard to illegal importation of gold - HELD THAT:- It is evident that the applicant does not deny his role with regard to illegal import of Samsung TV, but has vehemently asserted that he was not aware about the gold bars hidden in the TV Stand when it was brought by him from Thailand to India for an amount of ₹ 5,000/- to be given by the person at the Delhi Airport after delivery of the TV to him. Accordingly, the applicant has prayed that penalty of ₹ 5 lakhs which was reduced by the Commissioner (Appeals) from the original penalty of ₹ 10 lakhs is too harsh and shou....... + More
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2018 (8) TMI 1941
Duty Drawback sanctioned at reduced rates - benefit of N/N. 23/2008-Cus., dated 1-3-2008 - HELD THAT:- The revision application has been filed on 21-10-2015 against the Order-in-Appeal dated 30-6-2015. Since the date of receipt of the said Order-in-Appeal by the applicant was not mentioned in the revision application, this office vide letter dated 27-10-2015 requested the applicant to provide the date of communication of the Order-in-Appeal. But its communication to the applicant was not informed even thereafter till now. Hence, there is no option but to consider the date of Order-in-Appeal as its communication date also particularly when the office of the Commissioner (Appeals) is situated in the main Custom House itself in Kolkata where the office of the applicant is also located. Thus in absence of any specific date given by applicant,....... + More
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2018 (8) TMI 1940
Recovery of Duty Drawback - Section 74 of Customs Act, 1962 - claim rejected mainly on the ground that they had re-exported the imported goods after few days of importation, the padlocks are used by customers for years and it was not possible that 7.5 lakh locks could be re-exported by the applicant after collecting from so many customers - HELD THAT:- The re-export of the imported brass padlocks is not disputed by the Revenue authorities and the recovery of duty drawback is ordered by the original authority and upheld by the first appellate authority merely for the reason that the applicant did not produce any evidence to establish that they had not used these goods prior to re-export thereof. However, no such objection had been raised earlier by the original sanctioning authority and instead the drawback amount had been granted on being....... + More
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2018 (8) TMI 1939
Duty Drawback - applicability of time limitation - relevant date under the provision of Section 74 of the Customs Act, 1962 - rejection of claim on the ground that the goods were used by the respondent for more than 18 months from the date of payment of duty of customs on importation of the goods - HELD THAT:- The admissibility of drawback in this case is not in dispute under Section 74 of the Customs Act, 1962 in respect of re-exported goods and the department’s case in the revision application is only that drawback is not payable as the re-exported goods had been used for more than 18 months after importation of the goods. However, on meticulous examination of the Order-in-Original and the revision application it is noticed that the use of the goods has been wrongly calculated from the date of payment of customs duty which was mad....... + More
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2018 (8) TMI 1935
Maintainability of revision application - revision application filed after 7 months and 22 days from the receipts of the Order-in-Appeal - time limitation - request of the respondent for amendment of FOB value in Shipping bill for bank purpose only is allowed - drawback not claimed - HELD THAT:- The revision application has been filed after 7 months and 22 days from the receipts of the Order-in-Appeal. But despite of delayed filing of revision application, no application for condonation of delay was filed along with the application and it was presented after long gap on 6-7-2015 on the ground that the revision application could not be filed on time due to administrative reasons. Further the said application is filed for condonation of delay of 20 days only even when the actual delay is 144 days. Even the nature of administrative reasons w....... + More
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